Ben Peterson is an assistant professor of political science at Abilene Christian University.
The United States is in a state of emergency—several in fact. As of this writing, the country is in a state of emergency with respect to 41 issues, and emergency orders remain active in 21 states. One emergency, based on the frequently invoked International Emergency Economic Powers Act (IEEPA), has been in effect for over 40 years. In an understatement, Steven Aftergood of the American Federation of Scientists wrote “In ordinary language, a condition that persists for decades cannot properly be termed an ‘emergency’.” Most current national emergencies relate to sanctions of foreign individuals or nations under the IEEPA, but in February the Biden administration renewed the Coronavirus emergency President Trump initiated for another year. The Congress has granted presidents the authority to declare national emergencies and activate statutorily defined powers, requiring only that they provide notification. Emergency declarations expire annually unless the president renews them or Congress overrides them with a two-thirds vote in each house. The several states operate with varied, but similar emergency provisions.
In response to the pandemic, governments around the world have asserted emergency powers, in some cases suspending established civil liberties. Thanks to our approach to emergency power and the court system, the United States has so far avoided this outcome, though there are debates about the constitutionality of vaccine requirements at various levels. In our constitutional system, we aim to strike a balance giving governments adequate power to respond expeditiously to unforeseen and unusual circumstances, while maintaining constitutional limitations even on emergency power. The balance is delicate, though, and runs the risk of routinizing emergency, blurring the distinction between normal and extraordinary times, almost imperceptibly enlarging the sphere of government power. The propensity toward the complacent acceptance of long-lasting emergencies is, in other words, baked into our constitutional tradition. Recognizing this disadvantage of our system need not suggest abandoning our approach to emergency power, but it should deepen our awareness of the dilemma emergencies present to constitutionalism and push us to ponder attentively the distinction between normal levels of risk and times of emergency.
The Emergency Dilemma
Political systems must at times empower governors to respond to emergencies, or situations that require immediate action but “have not attained enough of stability or recurrency to admit of their being dealt with according to rule.” Since the concept of emergency “connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal,” the power to declare an emergency is thus also the power to define normality.
Emergency power, which allows for the suspension of standard legal procedures, has a long pedigree even in constitutional systems. The Roman Republic maintained a system of “constitutional dictatorship,” temporarily allowing executive officers extra-constitutional power or “prerogative,” for almost three centuries. A dictator would serve for six months, relinquishing authority after the term or upon completion of his assignment. On the recommendation of the Senate and with the confirmation of the Comitia Curiata, consuls would nominate a dictator to exercise unitary command over the military. The system was constitutional and law-governed in the sense that the dictator’s term was fixed and subject to senatorial oversight, enforced by formal and informal constraints, and employed frequently.
Emergencies require government to exercise extraordinary power, but they tend to empower the wielder of executive authority and can provide opportunities for transition to authoritarian rule or for dictators to tighten their grip. The Roman dictatorship functioned well, but it eventually provided a rationale for Sulla’s unconstrained dictatorship and the fall of the republic in the first century B.C. Likewise, Article 48 of the Weimar Constitution notoriously ceded emergency power to Hitler, who thus constitutionally assumed dictatorial power.
The problem of emergency power is akin to the problem of term limits. Make the limits too strict, and politicians may find the rules too constraining to abide by them. Make them too lax, and politicians in office for long periods may consolidate an inordinate degree of power. So with emergency power: a constitution with no provision for its exercise may quickly die or be ignored; one with too few constraints may follow the path of Weimar. The dilemma is particularly acute for liberal constitutional systems, which require constraints on government action that violates civil liberties but still need to empower government to act expeditiously, perhaps to respond to internal or external threats that might undermine the liberal order itself.
Emergency in American Constitutionalism
An important strand of American constitutional theory is based on the notion that government can respond to emergencies within a constitutional framework. Thomas Jefferson’s words in Notes on the State of Virginia, accosting the House of Delegates for considering the investiture of power in a dictator as violating basic tenets of republicanism exemplify this notion:
It provides a republican organization, proscribes under the name of prerogative the exercise of all powers undefined by the laws; places on this basis the whole system of our laws; and, by consolidating them together, chuses that they shall be left to stand or fall together, never providing for any circumstances, nor admitting that such could arise, wherein either should be suspended, no, not for a moment.
Clint Bolick writes that in the American constitutional order, “emergencies do not expand constitutional power.” While states and localities can invoke emergency powers that differ from ordinary ones, constitutional limits retain their force even in times of emergency. Courts have at times upheld this principle. For example, the U.S. Supreme Court ruled against President Harry Truman’s attempt to seize steel mills during World War II in Youngstown Sheet & Tube Co. v. Sawyer, arguing that such a seizure would be beyond the president’s constitutionally delegated authority. Justice Hugo Black’s opinion stated that, “The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.” Justice Robert Jackson’s concurring opinion reasoned that the American framers intentionally omitted extra-constitutional or extra-legal emergency power:
They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis.
In a recent case regarding a governor’s authority to require worship services of a certain size to be held outdoors if possible during the Covid-19 pandemic, one district court stated: “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.”
Yet, the Constitution allows for the exercise of emergency power, especially by the holder of executive office, on the basis of express or implied constitutional powers or powers granted through Congressional statute. The principle of habeas corpus may even be suspended in a time of rebellion or invasion. Since the Congress granted President George Washington the power to call up state militia to put the Whiskey rebellion down, the legislature has granted the president emergency power to respond to internal rebellions and other crises. In some cases, presidents like Abraham Lincoln asserted such power, receiving congressional validation after the fact.
States and localities likewise exercise emergency powers. States legislatures have conferred power on governors to declare states of emergency and alter or suspend statutes, as we have seen throughout the Covid-19 pandemic. More broadly, state and federal courts have ruled that states’ police powers include the prerogative to take extraordinary measures to contain threats to public health, including quarantining individuals reasonably believed to carry infectious disease. Legislatures may delegate power to public health boards or other administrative agencies and experts to make relevant decisions.
In some ways, the possibility of emergencies requiring extraordinary power is the very rationale for an energetic and active executive, as Alexander Hamilton wrote in Federalist #70:
Energy in the executive is a leading character in the definition of good government… Every man, the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals, who aspired to tyranny, and the seditions of whole classes of the community, whose conduct threatened the existence of all government, as against the invasions of external enemies, who menaced the conquest and destruction of Rome.
As they differed with respect to economic policy and constitutional interpretation in the debate on the National Bank, Jefferson and Hamilton represent competing strands of the American constitutional tradition with respect to emergency. Our tradition has sought to reconcile these two views, one almost denying the need for emergency power and the other envisioning the president as nearly playing the role of the Roman dictator.
The reconciliation has emerged in the form of what John Ferejohn and Pasquale Pasquino term “the legislative model,” as opposed to the Roman model of constitutional dictatorship. While precise laws cannot regulate every action in times of emergency, there can be legal and constitutional limits and legislative oversight of emergency powers. There can be limits on the scope of emergency power, such as restrictions from altering statutes governing emergency power themselves and executive authority during emergencies. Many states require legislative oversight and give legislatures the power to end states of emergency. In matters of public health, they can require approval from judges or other public officials before infringing upon normal civil liberties in the interests of public health.
In 1976, Congress passed and President Gerald Ford signed the National Emergency Act (NEA) with the aim of regularizing the president’s use of emergency power and requiring renewal and notification by the president to continue states of emergency. Subsequent statutes have authorized invocation of the law to declare emergencies for particular purposes. The NEA requires the President to notify Congress of intent to activate specific statutorily granted emergency powers and publish notice in the Federal Register. As Elizabeth Goitein writes, the original law included a legislative veto on presidents’ emergency declarations, but the Supreme Court ruled this arrangement unconstitutional in 1983, effectively requiring veto-proof legislation to override presidential declarations of emergency power. Presidential emergency powers are strewn over some 136 statutes, readily activated to pursue policy objectives, and Congress’s ability to constrain presidential declaration of emergency power is limited. For example, President Biden’s vaccine mandate relies on an emergency provision of the Occupational Health and Safety and Health Act of 1970, activated by the public health emergency declaration.
Goitein and other critics of our approach to emergencies have called for Congress to enact proposed legislation that would more tightly constrain presidential declarations of emergency power, limiting them to a 30-day span and lowering the threshold for Congressional override. Since last March, half of state legislatures have proposed and nine have enacted similar bills to increase legislative oversight over governors’ emergency power. These moves would be salutary, as they would increase legislative control over executive power. Yet, they would not fully dissolve the irony at the heart of our constitutional order as it pertains to emergency: in order to limit the danger of extra-constitutional power, the legislative model provides for the exercise of emergency power within the constitutional and legal framework, thus treating emergency as routine.
The Attraction and Danger of the Legislative Model
The American approach to emergency power is based on legislative delegation of specified powers with a broad range. At the state and national level, statutory authorization provides for the use of emergency power, with provisions for legislative oversight. We might say that, so long as such limits and oversight requirements remain in force, though presidents and governors exercise powers beyond their ordinary powers, the constitution and the rule of law survive. Yet, the continual acceptance of states of emergency at multiple levels of government routinizes emergency power, normalizing the abnormal.
For all its obvious disadvantages, constitutional dictatorship has the advantage of drawing clear lines between normal times and times of emergency. Recall Captain Kirk’s line from the Star Trek episode “A Taste of Armageddon” to the leader of a people who have regularized and sterilized an interplanetary war through technology. Kirk’s solution is to destroy the technology, making war hell again and incentivizing peacemaking: “Death, destruction, disease, horror. That’s what war is all about, Anan. That’s what makes it a thing to be avoided. You’ve made it neat and painless. So neat and painless, you’ve had no reason to stop it. And you’ve had it for five hundred years.” The analogy isn’t exact, but the principle relates: recognizing emergency power as something quite dangerous and to be used only in times of true emergency incentivizes political elites to keep a tighter rein on such power, keeping in mind the aim of returning to normal as soon as possible.
For all its advantages, the legislative model presents a danger subtler than that of constitutional dictatorship or the obvious crackdowns on civil liberties we have witnessed in places like Australia. Rather than a complete cession of power as in the Weimar path, the danger is of slow habituation to acceptance of emergency power as normal, since it is constitutionally legitimate in a technical sense.
Awareness and Action
In an interview with Fox News’s Chris Wallace, Dr. Anthony Fauci said: “Well, I am not comfortable telling people what they should do under normal circumstances, but we are not in normal circumstances right now.” Are we still in an emergency? Is an emergency that lasts for nearly 26 months still an emergency? Several public health experts responded to Alexandra Ellerbeck at the Washington Post to answer the question of when the public health emergency can end. They gave different answers, some tied to case, death, or hospitalization rates, and some tied only to hospital capacity. Some, like Leana Wen, the former Baltimore health commissioner, noted that determining what is normal is somewhat ambiguous:
I’d see lifting the state of emergency as being challenging as long as there is so much spread and a substantial proportion of the population—young children—who are not yet eligible to be vaccinated. As to when restrictions can be lifted later, this isn’t straightforward. It will depend on what level of infection and suffering we can tolerate, and what price we are willing to pay to reduce it.
Indeed, that is the question, and governors or even lawmakers cannot answer it alone. Post-pandemic, public officials face the dual challenge of enhancing public health systems for better preparedness and responses to future pandemics, while at the same time avoiding the temptation to maintain a near-constant emergency footing.
Though there have been abuses of emergency power in American constitutional history, such as the internment of Japanese Americans during World War II, we should celebrate the fact that our system has largely avoided the Weimar path. During the pandemic, American courts, in particular, have largely defended the principle that our constitution limits government power even in times of emergency. This is a blessing and a principle we should seek to strengthen. Yet, we should also understand the disadvantage of our system.
As Yuval Levin wrote toward the beginning of the pandemic, prudence is required to recognize the difference between normal times and emergencies. Not only frequent use of catastrophic political rhetoric, but the very design of our constitutional system when it comes to emergency predisposes us toward losing a clear sense of that distinction. Recognizing the tendency of our system to normalize emergency need not lead to advocacy for constitutional dictatorship. Rather, it suggests a greater awareness of our situation and the need for civic leaders and citizens to insist on the distinction between emergency and non-emergency.
The United States famously boasts the longest enduring written, national constitution in the world. The American constitutional tradition rightfully takes its place among the great examples of constitutionalism in world history, along with the Roman Republic and the British Constitution. Yet that record of long endurance hides slippages and dangers to which we should not blind ourselves. Further, the American tradition has always rested on a high degree of citizen participation. The dilemma of emergency power is a facet of our system that especially demands civic involvement, not only at the national but also the state level, and a refusal to accept the abnormal as normal.